E.K. v. J.K. Date:, 2012 BCPC 48

Citation: E.K. v. J.K. Date: 20120209 2012 BCPC 0048 File No: 32559 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: E. K. APPLICANT AND: J. K. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Applicant: S. Singh Counsel for the Respondent: M. Campbell Place of Hearing: Surrey , B.C.

Date of Hearing: January 25, 2012 Date of Judgment: February 9, 2012 [ 1 ] This is an Application by the Respondent Father to set aside the Consent Order of November 23, 2010, alleging that at the time of entering into the agreement, he was under the influence of alcohol and drugs, that he was under duress to enter into such agreement, that he was suicidal and that he did not receive any legal advice. [ 2 ] The Application is opposed. [ 3 ] There are two Children from the marriage, namely: M. R. K., born [DOB] J. F.

K., born [DOB] (hereinafter referred to as “the Children”) Court Background [ 4 ] The Mother filed an Application in this Registry with her counsel on June 15, 2010, seeking, inter alia , sole custody and guardianship, supervised access to the Father, and child and spousal support. [ 5 ] The Father filed a Reply and Counter Claim in this Registry on July 27, 2010, agreeing to pay child support, contested the balance of the relief sought by the Mother, sought joint custody and joint guardianship, and an Order prohibiting the Mother from

moving out of the Lower Mainland. He prepared and filed such on his own behalf. [ 6 ] On or about November 7, 2010, the parties negotiated Minutes of Settlement (hereinafter referred to as “Minutes”) amongst themselves. The Father had no legal advice in such. [ 7 ] Immediately thereafter, counsel for the Mother (the same counsel at that time as represented her in this matter before me) filed a Notice of Motion on November 16, 2010, returnable on November 23, 2010, to have the Minutes of Settlement form part of an Order.

Again, the Father had no legal advice. [ 8 ] The parties appeared before a Provincial Court Judge on November 23, 2010, and a Consent Order already prepared was presented to the presiding Judge and signed. A transcript of such was ordered and forms part of my Reasons herein. Evidence The Father [ 9 ] The Court heard from the Father that in November 2010, he was living with a roommate and, at such time, had been separated from the Mother for approximately 11 months. At such time, he was receiving unsupervised access to the Children.

The Mother and the Father agreed to finalize all matters arising from the breakdown of their marriage. The roommate of the Father acted as a mediary between the Mother and the Father. The Father testified that he was never told at anytime that the Minutes of Settlement were prepared by the Mother and her legal counsel. He did not take the Minutes to a lawyer. His roommate witnessed his signature.

He testified that he was only presented with a final form of the Minutes. [ 10 ] The Minutes contained clauses that the Mother would have sole custody and sole guardianship of the Children; that the Father could have supervised access to the Children for so long as the Mother approved of the Supervisor and that such access would be restricted to weekdays during the day; further, such access would only exist if the Father “refrained from all illegal drugs and alcohol”; and that the Father “must be clean and sober for a minimum 30 day period prior to any access with the Children to even being arranged.” [ 11 ] The Father testified that the Minutes were presented to him by his roommate, and that the Minutes were prepared by the Mother and her legal counsel (who is the same counsel as the Application before me).

He did not seek legal advice. The roommate witnessed his signature. He stated that at the time of signing the Minutes, he was struggling emotionally to keep the family in Canada, that he signed the Minutes because he feared the Mother would leave Canada with the Children and that the Mother had stated such in a series of emails to him and verbally.

Of note, the testimony of the Mother in the matter before me provided no rebuttal or denial that she had threatened to the Father to move to Washington State with the two Children if he did not sign the Minutes and agree to such terms in an Order. [ 12 ] The Father testified that he had been struggling with alcohol and drugs since 2004 and that by September 2010 his addiction had become unmanageable with frequent use and frequent relapses.

In November 2010, he testified that he was regularly substance abusing weekends and evenings, including passing out from alcohol consumption and using crack cocaine for two to three days in a row. He testified that he was sober for an 8 hour period on the date he signed the Minutes, but had drank copious amounts of alcohol for days prior to such. He was hospitalized in February 2011 for a suicide attempt, suffering from poor mental health, a loss of hope, a feeling of guilt and shame, an inability to remain sober and an inability to function.

The Father testified that he felt that at the time of signing the Minutes, he had no choice but to sign, feeling pressure and duress, and that if he did not sign, the Mother would move to Washington State with the Children. Of note, the testimony of the Mother offered no explanation, rebuttal or otherwise refuting the testimony of the Father, that in 2010 he was deeply involved in substance abuse. [ 13 ] For the November 23, 2010, court appearance, the Transcript produced in this hearing before me shows that the Father did not speak at all.

All conversation between the Court and any party was solely with counsel for the Mother who prepared the Consent Order and the Notice of Motion. The Father testified that he did not recall speaking to the Judge and in fact, the transcript shows that the Father was asked a question by the presiding Judge but counsel for the Mother interjected and spoke on his behalf, which was not acceptable.

The Father testified that he was never advised by counsel for the Mother to seek independent legal advice; that counsel for the Mother never advised him that he was solely representing the Mother; that the Father met with counsel for the Mother at the courthouse in an interview room in November 2010 on the date of the Order being made; that he was not aware of duty counsel; that he was not advised that he could seek the advice of duty counsel; that he remained fearful that the Mother would move to Washington State with the Children if he did not sign the Minutes or the Order. [ 14 ] In cross-examination, the Father testified that he has a degree of Bachelor of Arts in Finance, that he had been employed by ICBC for a portion of 2010 and that he had been employed by Fortis BC.

He testified that he had no

part in the drafting of the Minutes and that the Minutes were presented to him in typed form. The Father was admitted to Creekside for substance abuse treatment in June 2010, for which the Mother was aware. After seven weeks at Creekside, he was in the Pacific Treatment Centre for one to two months in 2010, thereafter relapsing and continued relapsing into 2011. He testified that during the 2010 period, he would drink weeknights and on weekends and do crack cocaine frequently. He would often miss one or two days of work from time to time.

He acknowledges to hearing the words “duty counsel” but does not know what duty counsel does or the services provided. He testified that he only spoke to Mr. Singh, counsel for the Mother. At the present time, he is not employed and was last employed in September 2011 doing some construction work.

He testified that any access that he has to the Children is in Washington State as the Mother quickly moved there after the Order of November 2010, that he has only seen the Children three times since the November 2010 Order and that all such access is supervised, and that he provided the Mother with a number of clean drug tests, at his own expense. He testified that since the Order of November 2010, the Mother has asked him for HIV test screening, none of which was ever set out in the Minutes or an Order.

The Mother [ 15 ] The Court heard from the Mother, who presently lives in Olympia, Washington State, with her parents and the Children. She moved to Olympia in August 2010, which of particular note was before the terms of the November, 2010, thus she moved even before

the Order was entered into. She testified that she purchased a self-help kit for separation from Chapters in 2010 and had assistance inpreparing the Minutes of Settlement. She says that the Father told her he wished to take it to a law firm for legal advice, however, therewas no evidence of such at this hearing. She acknowledged that it was her counsel who prepared the Notice of Motion and her lawyerwho prepared the Order of November 2010.

The Mother, in her testimony, acknowledged that she was aware that both herself and theFather had substance abuse problems and that the Father would sometimes disappear for days at a time.

She acknowledged that duringthe course of the marriage, the Father was a hands-on Father, including assisting with bathing and feeding the Children and assistingwith the household finances. [16] On cross-examination when asked about their mutual substance abuse, she said that she did not have it addressed in the Minutesor the Order because she did not want it to come up in Court; however, this Court notes that the Minutes and the Order have strictcompliance terms against the Father, but make no mention of the substance abuse by the Mother at the same time period.

Sheacknowledged on cross-examination that if she believed the Father to be not capable of having access to the Children unsupervised, itconflicted with her belief that the Father understood the nature of the Minutes of Settlement and the Order. She acknowledged that forthe Minutes of Settlement that “most of the terms were hers.” The Mother acknowledged that since the November 2010 Order, theFather has produced 10 clean drug tests to her and one dirty test, however, she still insists on supervised access, has asked for an HIVtest, and has asked for hair testing.

Analysis [17] I am guided by Rick v Brandsema, 2009 SCC 10 (hereinafter referred to as “Rick”), wherein the Court reviewed the setting asideof Agreements. The findings in Rick, supra, also guide me as to the setting aside of the November 23, 2010, Order. [18] In Rick, supra, the Court considered unconscionability to include the vulnerabilities of one party that existed at the time of thenegotiations.

It was clear in the evidence before me that the Father was deeply entrenched in substance abuse of both crack cocaine andalcohol, which was acknowledged by the Mother in her testimony, thus leaving the Father vulnerable, and it is unconscionable to utilizethose vulnerabilities to have the Minutes and a Consent Order so patently unreasonable. Counsel for the Mother in the matter before mewas the same counsel who prepared the Minutes, the Notice of Motion, and the Consent Order.

It is of particular note that there was noevidence before me that the Father was advised to seek independent legal advice; there was no evidence before me that the Father wasadvised by counsel that he only represented the Mother; there was no correspondence exhibited directing the Father to seek legal adviceor that of duty counsel; all of which makes it further unconscionable knowing that the Father is entrenched in substance abuse that hisframe of mind places him in a vulnerable and patently weak position and thus to be exploited with terms that are unreasonable to oneparty. [19] Counsel for the Mother had a professional obligation to ensure that the Father was to be advised that he only represented theMother and further, particularly given the terms of the Minutes and the Consent Order have such extraordinary remedies, that should theFather fail one drug test, the Father had no recourse thereafter and that the Mother was immediately permitted to move to WashingtonState with the Children, even though the evidence was unchallenged and even acknowledged by the Mother that at such time, she, too,was engaged in substance abuse.

The clauses contained in the Minutes, and thereafter the Consent Order, are so patently unreasonable asagainst the Father that I am satisfied that, particularly knowing that the Father and the Mother were both in significant substance abuse asacknowledged by both in their testimony, legal counsel should have taken steps to ensure that the Father was aware that legal counselonly represented the Mother and to advise the Father in writing of such and, further, to recommend that the Father seek independent legaladvice or even speak to duty counsel.

Neither the Minutes of Settlement nor the Order were obtained fairly and there is a distinctabsence of procedural fairness and legal counsel should have undertaken a professional obligation to ensure that the Father wasrecommended to seek independent legal advice or seek duty counsel assistance, particularly given the uneven nature of the bargainingwith such onerous terms against the Father. [20] The Father was clearly taken advantage of in the proceedings.

Even moreso troubling was a review of the transcript, wherein theparties and counsel for the Mother appeared before a Provincial Court Judge, shows that despite the Provincial Court Judge asking theFather a question, counsel for the Mother interjected and spoke. Not one word was spoken by the Father. The Father was not directed toseek duty counsel assistance nor was it canvassed if the Father was aware of his ability to seek independent legal advice or to speak toduty counsel. This Notice of Motion was brought on very short notice, again, taking advantage of the Father who was in a vulnerableposition.

I am troubled by the steps taken by the Mother and her counsel. I am further satisfied that there is sufficient evidence beforeme to conclude that there was duress on the part of the Mother for the Father to sign the Minutes and the Consent Order. [21] The Father testified that he feared that if he did not consent to the terms, the Mother would unilaterally move to WashingtonState with the Children. Contrary to the conclusion as set out in Bossenberry v Bossenberry (1994), (ON SC), 6 RFL (4th) 47 (Ont. Gen.

Div.), it was clear on the facts before me that the emotional distress, upon which the Father was under with theMother repeatedly stating that she would move to Washington State with the Children, is a compelling factor for consideration,particularly given that the Father was deeply entrenched in substance abuse, thus further putting him in a significant deficit as tobargaining and negotiating. [22] The bargaining positions of the parties were significantly disproportionate.

The Father testified that he was both verbally and inemail form advised of this repeatedly by the Mother, none of which was challenged by counsel for the Mother on cross-examination. More troubling is, even since the November 23, 2010, Order has been made, despite ten clean drug tests, the Mother continues towithhold access, has moved to Washington State, requires that the handful of access that the Father has had in Washington State besupervised, has unilaterally asked the Father for an HIV test, and has unilaterally asked the Father for a hair test rather than a urinalysis.

Such over-handed tactics are very disconcerting. Conclusion [23] The manner in which the Minutes was carried out, and the manner in which the Consent Order was entered into, cannot withstandan analysis that such was conducted in a reasonable manner, free of duress, and free of unconscionability. Also troubling is that counselfor the Mother never took steps to advise the Father that he only represented the Mother or to recommend to the Father that he seek

independent legal advice, or at the very minimum, the assistance of duty counsel on the day that the Consent Order was spoken to in Court, particularly given that the clauses contained therein are completely having full control of the conduct of the Father, including allowing a clause that the Mother may unilaterally move to Washington State with the Children should there merely be one dirty test.

That is unconscionable and not acceptable. [ 24 ] While by itself the absence of independent legal advice should not automatically invalidate any Agreement, the facts here are the significant substance abuse, the fact that counsel for the Mother did not advise the Father that he only represented the Mother, the Father was not recommended by such counsel to seek legal advice, the threats made by the Mother over the Father that non signatory of such will result in her moving to Washington State with the Children (which she did in any event), all collectively make this patently unreasonable.

This should serve as guidance for parties, with or without counsel, that quick negotiations, quick return dates of Notices of Motion, all done in haste with quick turnaround dates, are patently unreasonable as against one party, have grave consequences and liabilities that cannot, or should not, be taken lightly. [ 25 ] Accordingly, the following Order is made: The Minutes of Settlement of November 2010 and the Consent Order of November 23, 2010, are hereby set aside. [ 26 ] These are my Reasons. __________________________________ The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia